[Federal Register Volume 74, Number 129 (Wednesday, July 8, 2009)]
[Rules and Regulations]
[Pages 32389-32391]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16029]



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Rules and Regulations
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Federal Register / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Rules 
and Regulations

[[Page 32389]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 52

[Doc. No. AMS-FV-08-0075; FV-08-330]
RIN 0581-AC89


Country of Origin Labeling of Packed Honey

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule would establish a new regulation 
addressing country of origin labeling for packed honey bearing any 
official USDA mark or statement and would add a new cause for debarment 
from inspection and certification service for honey. The rule is 
necessary because section 10402 of the Food, Conservation and Energy 
Act of 2008 (2008 Farm Bill) amended the Agricultural Marketing Act of 
1946 to require country of origin labeling for honey if it contains 
official USDA grade marks or statements. The regulations governing 
inspection and certification would be amended to include a provision 
for country of origin labeling requirements for packed honey and for 
debarment of services if the country of origin labeling requirements 
are not met for packages of honey containing official USDA grade marks 
or statements.

DATES: This interim final rule is effective on October 6, 2009. 
Comments must be submitted on or before September 8, 2009.

ADDRESSES: Interested persons are invited to submit comments via the 
Internet at http://www.regulations.gov. Comments submitted by mail or 
courier must be sent in duplicate to the Chere L. Shorter, Processed 
Products Branch, Fruit and Vegetable Programs, Agricultural Marketing 
Service, U.S. Department of Agriculture, STOP 0247, Washington, DC 
20250-0247, fax (202) 690-1087, or e-mail Chere.Shorter@ams.usda.gov. 
Comments should make reference to the date and page number of this 
issue of the Federal Register and will be made available for public 
inspection in the above office during regular business hours and on the 
Internet at http://www.regulations.gov or http://www.ams.usda.gov/processedinspection. All comments received will be posted without 
change, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Chere L. Shorter at the above 
address, call (202) 720-4693, or e-mail Chere.Shorter@usda.gov.

SUPPLEMENTARY INFORMATION: Section 10402 of the 2008 Farm Bill (Pub. L. 
110-246) amended section 1622(h) of the Agricultural Marketing Act of 
1946, (7 U.S.C. 1621-1627, 1635-1638d (Act)), to require that all 
packed honey bearing any official USDA mark or statement also bear 
``legibly and permanently in close proximity (such as on the same 
side(s) or surface(s)) to the certificate, mark, or statement, and in 
at least a comparable size, the [country or] countries of origin of the 
lot or container of honey, preceded by the words `Product of' or other 
words of similar meaning.'' Section 10402 also establishes that a 
violation of the labeling requirements may be deemed by the Secretary 
of Agriculture to be sufficient cause for debarment from the benefits 
of the Act, only with respect to honey, and that the honey amendments 
shall take effect one year after the date of enactment of the 2008 Farm 
Bill, which is June 18, 2009.
    The Act authorizes official inspection, grading, and certification 
for processed fruits, vegetables, and processed products made from 
them. This amendment to the Act requires the amendment of the 
regulations in 7 CFR part 52, which provide for official inspection and 
certification services with respect to processed fruit, vegetables, and 
miscellaneous products and the fees charged for such services. Section 
52.53 describes and illustrates the use of approved certification 
marks. Section 52.54 lists the acts or practices that may cause 
debarment by the Administrator of any person from any benefits of the 
Act for a specified period of time. These include: (1) Fraud or 
misrepresentation in filing an application; submission of samples; use 
of an inspection report or certificate; use of the words ``Packed under 
continuous inspection of the U.S. Department of Agriculture,'' any 
legend signifying that the product has been officially inspected, any 
statement of grade or similar words; use of a facsimile form; (2) 
willful violations of the regulations; or (3) interfering with an 
inspector, inspector's aid, or licensed sampler. Pursuant to the 
amendment of the Act by the 2008 Farm Bill, section 52.54 will be 
amended to add a new paragraph providing for debarment of services if 
the country of origin labeling requirements are not met for honey.

Executive Order 12988

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. This rule is not intended to have a 
retroactive effect and does not preempt any State or local laws, 
regulations, or policies unless they present an irreconcilable conflict 
with this rule. There are no administrative procedures which must be 
exhausted prior to any judicial challenge to the provisions of this 
rule.

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget (OMB).

Regulatory Flexibility Act and Paperwork Reduction Act

    As required by the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
the Agricultural Marketing Service (AMS) has prepared a regulatory 
flexibility analysis. AMS, however, does not currently have all of the 
data necessary for a comprehensive analysis of the effects of this 
interim final rule on small entities. Therefore, AMS welcomes public 
comment that would enable it to more fully consider impacts of the 
rule, especially information on the use of official USDA grade marks on 
honey and any costs associated with reconfiguring product labeling.
    AMS estimates that there are between 139,600 and 212,000 beekeepers 
in the United States. The vast majority of beekeepers (95 percent) are 
hobbyists with fewer than 25 hives, or bee colonies, and about 4 
percent are part-

[[Page 32390]]

time beekeepers who keep from 25 to 299 hives. Together, hobbyists and 
part-time beekeepers account for about 50 percent of bee colonies and 
about 40 percent of honey produced. Commercial beekeepers are those 
with 300 or more bee colonies. There are approximately 1,600 commercial 
beekeeping operations in the United States, which produce about 60 
percent of the nation's honey.
    AMS believes that there are approximately 2,000 producers of honey, 
45 handlers/packers, and 659 importers of honey and honey products. The 
Small Business Administration [13 CFR 121.201] defines small 
agricultural producers as those having annual receipts of $750,000 or 
less annually and small agricultural service firms as those having 
annual receipts of $7 million or less. Using these criteria, most 
producers and handlers/packers would be considered small businesses, 
while most importers would not.
    National Agricultural Statistics Service (NASS) data report that 
U.S. production of honey, from producers with five or more colonies, 
totaled less than 155 million pounds in 2006, representing a decrease 
of almost 16 percent from 2004. The number of U.S. bee colonies 
producing honey in 2007 was 2.4 million (based on beekeepers who manage 
five or more colonies).
    In 2007, more than 148 million pounds of honey were produced in the 
United States. The average annual yield per colony was 60.8 pounds of 
honey. The average producer price per pound was $1.03. The 2007 honey 
crop was valued at more than $153 million. In 2006, the honey price was 
$1.04, which was up 14 percent from $0.92 in 2005.
    The top six honey producing States in 2006 were North Dakota, 
California, Florida, South Dakota, Montana, and Minnesota. NASS 
reported the value of honey sold from these six states in 2006 was 
$84,583,000 and the volume produced was 90,433,000 pounds. From 1980-
2002, U.S. honey production averaged around 200 million pounds per 
year, with U.S. commercial beekeepers producing more than 220 million 
pounds of honey as recently as 2000.
    Based on the reports by U.S. Customs and Border Protection 
(Customs), seventeen countries produced more than 93 percent of the 
honey imported into the U.S. In 2005, five of these countries produced 
almost 79 percent of the total honey imported into the United States. 
These countries and their share of the imports are China (27 percent), 
Argentina (21 percent), Vietnam (13 percent), Canada (10 percent), and 
India (8 percent). Imports accounted for 69 percent of U.S. consumption 
in 2006, an increase of 18 percent, up from 51 percent since 2002.
    The United States is one of the world's largest markets for 
industrial honey. This sector accounts for approximately 45 percent of 
total domestic consumption. The primary users of industrial honey are 
bakery, health food, and cereal manufacturers. Other users such as the 
food service industry account for another 10 percent of domestic 
consumption. Individual consumers who purchase small amounts of honey 
for personal use also significantly contribute to overall consumption 
in the United States. Consumption in the United States is about 275 
million pounds.
    USDA grades for honey are not mandatory, but beekeepers, handlers/
packers labeling honey as a particular grade are responsible for the 
accuracy of the label. The U.S. Standards for Grades of Honey are 
located on the AMS Web site at http://www.ams.usda.gov/processedinspection.
    The Act authorizes the inspection, certification, and 
identification of class, quality, quantity, and condition of 
agricultural commodities. Under the Act, no person is required to use 
the services.
    The 2008 Farm Bill amended the Act to require that packaged honey 
bearing a grade mark or statement, continuous inspection mark or 
statement, sampling mark or statement, or any combination of marks or 
statements of the Department of Agriculture, must also bear the one or 
more names of the countries of origin of the lot or container of honey 
legibly and permanently in close proximity to and at least in 
comparable size to the mark or statement.
    Under the existing regulations governing the inspection and grading 
of processed fruits, vegetables, and miscellaneous products, section 
52.53 provides for the use of approved identification marks and 
paragraph (h) describes or lists prohibited uses of approved 
identification. Section 52.53(h) provides that, except for officially 
inspected or otherwise approved products, no label or advertising 
material used upon, or in conjunction with, a processed product shall 
bear a brand name, trademark, product name, company name, or any other 
descriptive material as it relates or alludes to any official U.S. 
Department of Agriculture certificate of quality or loading, grade 
mark, grade statement (except honey and maple syrup which may bear such 
grade mark or statement), continuous inspection mark, continuous 
inspection statement, sampling mark or sampling statement or 
combinations of one or more of the above. Therefore, honey and maple 
syrup may bear official USDA grade marks without official inspection.
    This rule would apply to domestic as well as foreign sources of 
honey. Under this rule, any honey that has a grade mark or official 
U.S. grade mark would have to include in its label the country of 
origin in letters at least the same size and in close proximity to the 
grade mark. For example, if foreign or domestic honey were labeled 
Grade A or U.S. Grade A, then it would have to identify its country or 
countries of origin. Conversely, if the honey is not officially grade 
labeled, the country of origin labeling is not necessary whether the 
honey is domestic or foreign.
    AMS believes that under current industry labeling practices, 
packages of honey that include the official U.S. grade marks, in most 
cases, also include country of origin labeling. However, the Act 
requires that all honey bearing any official USDA mark or statement 
also bear legibly and permanently in close proximity (such as on the 
same side(s) or surface(s)) to the certificate, mark, or statement, and 
in at least a comparable size, the country or countries of origin of 
the lot or container of honey, preceded by the words ``Product of'' or 
other words of similar meaning. AMS is interested in any comments from 
producers, handlers, importers, or other interested persons concerning 
the cost, if any, associated with reconfiguring the labeling of honey 
in accordance with this rule.
    Because honey does not require official inspection in order to 
carry official USDA grade marks and since there are no existing 
programs that require the official inspection and certification of 
honey, AMS believes that there will be little, if any, impact on the 
honey industry or small entities. Further, AMS believes that product 
labeling changes normally involve reconfiguring labeling without 
substantial costs and without having to purchase new equipment.
    With regard to alternatives to this rule, section 10402 of the 2008 
Farm Bill amends the Act, which requires AMS to amend its regulations.
    Enforcement will be handled by AMS if it receives complaints. All 
complaints will be turned over to our Compliance and Analysis Program 
(Compliance) who will investigate the alleged violation. Compliance 
would then determine the validity of the complaint, and appropriate 
action would be taken. Further, it is reasonable to allow time for 
packaged honey bearing any official USDA mark or statement already in 
the

[[Page 32391]]

chain of commerce to clear the system and allow the honey industry time 
to reconfigure labels as appropriate. A 90-day period is provided for 
that purpose.
    The Agency has identified some Federal rules that may be viewed to 
duplicate or overlap with this rule. Under pre-existing Federal laws 
and regulations, country of origin labeling is required.
    Such requirements are enforced by the U.S. Customs and Border 
Protection (CBP) as authorized by the Tariff Act of 1930 and CBP 
regulations (19 U.S.C. 1304(a) and 19 CFR Part 134). This law requires 
that every imported item must be conspicuously and indelibly marked in 
English to indicate to the ``ultimate purchaser'' its country of 
origin.
    Additionally, repackers are required by CBP to mark containers of 
repackaged imports with the English name of the country of origin. In 
the event that further reprocessing or material is added to the article 
in another country and results in a ``substantial transformation'' of 
the product, the other country becomes the country of origin within the 
meaning of CBP's labeling requirements, 19 CFR 134.1(b) and 134.11.
    AMS has reviewed this rule under the Paperwork Reduction Act, 44 
U.S.C. 3501-3520, and has determined that there are no additional 
information collection requirements imposed by this rule.
    Pursuant to 5 U.S.C. 553, it is found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect because: (1) This rule has to be implemented because of an 
amendment by the Farm Bill to the Act and has an effective date of 
October 6, 2009; and (2) this rule provides a 60-day comment period and 
any comments received will be considered prior to finalization of this 
rule.

List of Subjects in 7 CFR Part 52

    Food grades and standards, Food labeling, Honey, Miscellaneous 
products, Debarment of services, Reporting and recordkeeping 
requirements, Approved identification, Country of origin labeling, and 
Prohibited uses of approved identification.

0
For the reasons set forth in the preamble, 7 CFR part 52 is amended as 
follows:

PART 52--PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS 
THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 7 U.S.C. 1621-1627.


0
2. In part 52, Sec.  52.54 is amended by adding paragraph (a)(4) to 
read as follows:


Sec.  52.54  Debarment of service.

    (a) * * *
    (4) Country of origin labeling for packed honey. (i) The use of a 
label or advertising material on, or in conjunction with, packaged 
honey that bears any official certificate of quality, grade mark or 
statement, continuous inspection mark or statement, sampling mark or 
statement, or any combination of the certificates, marks, or statements 
of the Department of Agriculture is hereby prohibited unless there 
appears legibly and permanently in close proximity (such as on the same 
side(s) or surface(s)) to the certificate, mark, or statement, and in 
at least a comparable size, the one or more names of the one or more 
countries of origin of the lot or container of honey, preceded by the 
words `Product of' or other words of similar meaning.
    (ii) A violation of the requirements of this section may be deemed 
by the Secretary to be sufficient cause for debarment from the benefits 
of the regulations governing inspection and certification only with 
respect to honey.

    Dated: June 30, 2009.
Robert C. Keeney,
Acting Associate Administrator, Agricultural Marketing Service.
[FR Doc. E9-16029 Filed 7-7-09; 8:45 am]
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